The Role Of The Courts

A.L. celebrates:

I repeat my prediction that, within a decade, the Supreme Court will strike down bans on gay marriage nationally.

Many conservative critics (at least the principled ones) are today praising Vermont for legalizing gay marriage the "right way," i.e., by a vote of the legislature and not by judicial decree. But I think that analysis vastly oversimplifies the issue. The reality is that what happened in Vermont today likely would not have happened but for the actions of judges in Massachusetts, and several years earlier, in Vermont.

 In 1999, in the landmark decision of Baker v. Vermont, the Vermont Supreme Court held that the state's ban on same sex marriage was unconstitutional and ordered the legislature to either permit same sex marriage or institute some alternative framework (civil unions) that would provide the same rights as marriage. That decision led directly to Vermont's first-in-the-nation civil union law. It also laid the legal groundwork for later decisions, including Goodrich.

Perhaps more importantly, however, these early judicial decisions changed the scope of the public debate. They forced people, for the first time, to grapple with the obvious tension between prevailing attitudes regarding gay rights and the inequality inherent in existing marriage laws. The fact that the world didn't collapse after gay people were allowed to enter into civil unions and then marriage also helped people adjust to the idea and get over their initial apprehensions. It changed public opinion. Without the court decisions that paved the way, it is very unlikely that this day would have come (at least at the speed it did).